Landmark U.S. Supreme Court ruling a big win for tribal sovereignty

McGirt v. Oklahoma acknowledges broken treaties

Implies that much of eastern Oklahoma is reservation lands

Ruling puts tribes in strong negotiating position

Oklahoma today. Image: Wikimedia.

On the surface, MCGIRT v. OKLAHOMA was an effort by Jimcy McGirt, an enrolled member of the Seminole Nation, to get a new trial on sexual assault conviction, a crime that took place on the Creek Reservation.

The underlying issues the case needed to resolve gave the decision a much broader impact.

At issue was whether the State of Oklahoma or U.S. government had jurisdiction to prosecute McGirt’s crime. The Supreme Court ruled that the federal government had jurisdiction because the Creek Nation effectively was an Indian reservation, at least as far as prosecuting major crimes such as sexual assault.

This was a roundabout way of a broken treaty getting long-overdue attention.

The decision’s impact ranges from overturning more convictions, like McGirts’, that were committed by an Indigenous person on Indigenous lands. It also could affect such things as zoning, taxation, and environmental law within reservation borders.

The decision will spark significant negotiations between the U.S. government, the state of Oklahoma, and the five Native Nations in the state.

Tail of Tears map, 1836-1839. Image: Nikater and Wikimedia Commons

Understanding the Court’s decision requires two pieces of historical context: The Indian Removal Act of 1830 and the Major Crimes Act of 1885.

The Creek Nation’s ancestral home was in what is now the Alabama; the Creek Nation now lives in Oklahoma. The U.S. government stole their lands west of the Mississippi, and the lands of other Tribal Nations, through the 1830 Indian Removal Act. President Andrew Johnson brutally enforced it, in what is now known as the Trail of Tears.

The Indian Removal Act allowed the president to “negotiate” with Native American tribes for their removal west, but it was anything but a negotiation. “The act has been referred to as a unitary act of systematic genocide,” Wikipedia says. During the forced relocation, Indians suffered from “exposure, disease, and starvation while en route to their new designated reserve, and approximately 4,000 died before reaching their destinations or shortly after from disease.”

As part of this very lopsided deal, Native Nations were given land in what was then called “Indian Territory” in perpetuity. At one point, nearly the entire area that is now Oklahoma was a series of Indian reservations.

That promise didn’t last. Through various means such as the Allotment Act, Native lands began moving into settlers’ hands. Oklahoma ceased having Indian reservations like other states. In the early 1900s, Oklahoma was trying to get admitted to the union, Wikipedia said. Through a series of acts, Congress tried to “unilaterally dissolve all sovereign tribal governments within the state of Oklahoma.”

By 1936 the federal government had changed its policy with regards to Indian tribes, and Indian nations within the state of Oklahoma were reinstated by the Oklahoma Indian Welfare Act. However, by that time, the State of Oklahoma was a sovereign state and the powers and authorities that other non-Oklahoma reservations possess could not be taken back from the State of Oklahoma.

Indian Territory, 1879. Dept. of the Interior, General Land Office. Image: David Rumsey Historical Map Collection

That brings us to McGirt v. Oklahoma.

McGirt was accused of sexually assaulting his wife’s granddaughter on Creek lands. He was prosecuted and convicted in the Oklahoma state court system.

Under the Major Crimes Act of 1855, however, the federal government took over the prosecution of major crimes committed by a Native American on reservation lands. These crimes included murder, rape and burglary.

McGirt challenged the state of Oklahoma’s authority to prosecute him. His attorneys argued that the Creek’s reservation still existed, so the Major Crimes Act applied. That meant the federal government should have brought charges. The state conviction should be thrown out.

Justice Neil Gorsuch, a Native law scholar, sided with the court’s four liberal judges and authored the majority opinion siding with Girts’ argument.

The opinion began:

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” … The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.”

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

A map of the Oklahoma Territory and the reduced Indian Territory circa 1890’s. Image: Wikimedia Commons

That last sentence seems to indicate that an act of Congress could undo the Court’s decision.

Bloomberg Law reports that American Indian law practitioners and scholars are applauding the decision “for its powerful affirmations of tribal sovereignty.”

The ruling’s broad impacts will continue to be debated. The ruling says for the purposes of federal criminal law, the Creek have a reservation. (And that reservation includes “most of Tulsa and certain neighboring communities in Northeastern Oklahoma,” the ruling said.

The ruling is silent on whether or not the Creek have an established reservation for other purposes, such as zoning and taxation.

The ruling only applies to the Creek, not the Choctaw, Cherokee and other Native Nations in Oklahoma. “Each tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek,” Gorsuch wrote.

The opinion certainly opens the door for other Native Nations to bring similar challenges.

At a minimum, the decision “could reshape the criminal justice system by preventing state authorities from prosecuting offenses there that involve Native Americans,” the New York Times reported.

According to Bloomberg, the Court’s “dissenters warned the outcome could lead to scores of criminal convictions getting overturned and potentially destabilizing effects on governance in the state.” It continued:

In dissent, Chief Justice John Roberts said that, on top of criminal consequences, the decision “creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

According to the Times: “many of the specific impacts will be determined by negotiations between state and federal authorities and five Native American tribes in Oklahoma.”

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